July 21, 2010

Fifth Circuit Cuts DMCA Down to Size; "Dongle" in the Software Jungle (Update)

[See bottom of post for update on the Fifth Circuit's new opinion in the case.]

The software you use at work came from God knows where. Perhaps the Internet. But your copy features something the author didn't intend. Unlike the version the author sells, this one has somehow disabled the security doodad that controls access to the software application and the underlying code.

Have you violated the Digital Millennium Copyright Act?

Yesterday the Fifth Circuit said no, you didn't.

The case involved a program that MGE UPS Systems created to allow quick calibration of its uninterruptible power supply machines, which keep systems running during power outages. MGE protected access to and use of the software by means of a "dongle", which upon insertion in your computer's serial, USB, or other port tells the program it can start running.

Section 1201(a)(1)(A) of the statute provides that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." 17 U.S.C. 1201(a)(1)(A).

"Because the dongle does not protect against copyright violations," the court held, "the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA." MGE, slip op. at 7 (emphasis in original). "Moreover, the DMCA's anti-circumvention provision does not apply to the use of copyrighted works after the technologicalmeasure has been circumvented." Id. (emphasis in original).

Blawgletter infers that, under MGE, you don't run afoul of section 1201(a)(1)(A) unless (a) the security measure you circumvent (e.g., encryption of the software code) directly prevents copyright violations (copying, making derivative works of, and displaying or selling the work) and (b) you yourself write the code that you then use to circumvent the security measure.

The dongle didn't directly stop copying and other copyright violations, you see, and anyway GE simply took advantage of someone else's method of getting around the dongle.

[Update: On September 29, 2010, the Fifth Circuit, without explanation, withdrew its original opinion and substituted one that omitted one of the two grounds for holding that GE didn't violate the DMCA. New opinion here. The court had at first agreed with the Federal Circuit's view that the DMCA requires proof that the circumvention resulted in a copyright violation. The later opinion left that part out, as the Ninth Circuit noted three months afterwards in MDY Industries, LLC v. Blizzard Entertainment, Inc., No. 09-15932, slip op. at 20010 n.11 (9th Cir. Dec. 14, 2010). Post here.